Citation Nr: 1122046
Decision Date: 06/07/11 Archive Date: 06/20/11
DOCKET NO. 07-21 582 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in North Little Rock, Arkansas
THE ISSUE
Entitlement to compensation under 38 U.S.C.A. § 1151 for adenocarcinoma of the prostate to include post operative residuals.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of the United States
WITNESSES AT HEARING ON APPEAL
Veteran and spouse
ATTORNEY FOR THE BOARD
C.A. Skow, Counsel
INTRODUCTION
The Veteran had active service from April 1951 to September 1951.
This matter is before the Board of Veterans' Appeals (Board) on appeal of an October 2002 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Little Rock, Arkansas.
In June 2008, the Veteran and his spouse testified at a hearing before the undersigned Acting Veterans Law Judge (VLJ). A transcript of the hearing testimony is associated with the claims file.
It is noted that this case has been remanded on several occasions. In March 2006, the issue was remanded for issuance of a Statement of the Case. In November 2008, the Board remanded this case for development to include a VA examination with an opinion. In July 2010, the Board remanded this case for evidentiary development. In January 2011, the Board again remanded this case to ensure full compliance with the VA's duty to assist obligations. The Board requested a complete rationale for the most recent VA medical opinion.
It is noted that, pursuant to the July 2010 Board remand, clarification was requested by letter dated August 2010 on whether the Veteran sought to pursue a claim for service connection for adenocarcinoma of the prostate. No response has been received to date on this matter. Therefore, the Board believes that no further action is required by VA at this time on such.
Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). 38 U.S.C.A. § 7107(a)(2) (West 2002).
FINDING OF FACT
Neither adenocarcinoma of the prostate nor post operative residuals of prostate cancer are shown to be the result of VA hospital care, medical or surgical treatment, or examination. Additional disability due to VA hospital care, medical or surgical treatment or examination is not shown. Delay of notification or treatment for adenocarcinoma resulting in additional disability is not shown.
CONCLUSION OF LAW
The criteria for compensation benefits under the provisions of 38 U.S.C.A. § 1151 for adenocarcinoma of the prostate to include post operative residuals of prostate cancer have not been met. 38 U.S.C.A. § 1151 (West 2002); 38 C.F.R. § 3.358 (2010).
REASONS AND BASES FOR FINDING AND CONCLUSION
The Veterans Claims Assistance Act of 2000 (VCAA), (codified at 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126), imposes obligations on VA in terms of its duty to notify and assist claimants. Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VA must inform the claimant of any information and evidence not of record that (1) is necessary to substantiate the claim as to all five elements of the service connection claim (including degree of disability and effective date of disability (See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006)); (2) VA will seek to provide; and (3) the claimant is expected to provide. 38 U.S.C.A. § 5103(a); Quartuccio, supra. at 187; 38 C.F.R. § 3.159(b). Notice should be provided at the time that VA receives a completed or substantially complete application for VA-administered benefits. Pelegrini v. Principi, 18 Vet. App. 112 (2004); Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006) at 119 (2004). This timing requirement applies equally to the initial-disability-rating and effective-date elements of a service connection claim. Dingess/Hartman, supra.
The record shows that VA received a claim for compensation based on 38 U.S.C.A. § 1151 in August 1996. In a March 1997 rating decision, the RO denied the claim for compensation under 38 U.S.C.A. § 1151 for adenocarcinoma of the prostate. In March 1997, the Veteran submitted a document that the Board reasonably construes as a disagreement with the March 1997 determination and a desire for appellate review. 38 C.F.R. § 20.201. Pursuant to Board remand decision dated March 2006, the RO issued to the Veteran a Statement of the Case dated June 2007. The Veteran subsequently perfect his appeal with filing a VA Form 9 in July 2007.
In the present case, the unfavorable rating decision that is the basis of this appeal was already decided and appealed prior to the enactment of the current § 5103(a) requirements in 2000. The Court acknowledged in Pelegrini that where, as here, the § 5103(a) notice was not mandated at the time of the initial decision, the RO did not err in not providing such notice. Rather, a veteran has the right to a content complying notice and proper subsequent VA process. Pelegrini, 18 Vet. App. at 120. As such, the Board observes that the Veteran was given notice of the requirement to establish a claim based on section 1151 in a letter dated April 2006. VA advised the Veteran of what information or evidence was needed from him, the evidence received or obtained, and the evidence VA was obligated to obtain on his behalf. He was furthermore provided notice of the disability rating and effective date elements of his claim. In April 2008, the RO supplemented its prior notice with another notice of how VA determines disability evaluations.
It is noted that 38 U.S.C.A. § 1151 provides for compensation to be awarded for additional disability caused by VA surgery in the same manner as if such additional disability were service- connected. Significantly, although this statute was amended effective October 1, 1997 to require fault on behalf of VA, the Veteran's claim was received in August 1996, prior to this date. The version of the statute and its implementing regulation, 38 C.F.R. § 3.358, which apply to claims filed before October 1, 1997 and do not require VA fault except in certain circumstances, are therefore for consideration in this case. See Brown v. Gardner, 513 U.S. 115 (1994). The RO notices provided to the Veteran in April 2006 are consistent with Gardner in that they did not require that the appellant provided evidence of fault. The June 2007 Statement of the Case sent to the Veteran, likewise, identified the correct regulatory provisions applicable to this case.
However, the Board observes that, beginning with the Board decision dated November 2008, the Veteran was given incorrect notice of the laws governing his claim-specifically, he was advised of the provisions of 3.361 (the more restrictive law) that became effective in Semptember 2004 and applies only to claims filed after October 1, 1997. This is clear error. However, the Board finds that the Veteran has not been prejudiced by this error. This is because the claim was not, and is not, denied based on the restrictive provision of section 3.361, but rather on the element common to both laws, section 3.358 and 3.361, that is, the existence of additional disability due (caused by) to VA hospital care, medical or surgical treatment, or examination-to include delay of treatment. In the adjudication of this case, the RO did not deny the claim based on any fault or negligence element. Here, the seminal inquiry of this case involves the provision of section 3.358 that is essentially the same as that set out in section 3.361. Therefore, the error is harmless.
Ultimately, the Veteran has not been deprived of information needed to substantiate his claim and the very purpose of the VCAA notice has not been frustrated by the error here. Also, the Board notes that the Veteran has been represented throughout his appeal by an accredited veterans service organization and that he has been afforded due process of law-that is, the RO readjudicated the claim following issuance of the June 2007 SOC and provided the Veteran with Supplemental Statements of the Case. In the circumstances of this case, a remand would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements in the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the claimant); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the claimant are to be avoided).
VA has also satisfied its duty to assist. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. Pertinent VA and private medical records and opinions have been obtained and associated with the claims folder. In June 2009, VA received private treatment record from Dr. J. Allen dated 2006. In regards to records identified by the Veteran with a Dr. A. Hussain, VA contacted in September 2009 the medical records department of the facility identified by the Veteran in Blytheville, Arkansas, and requested the treatment records of Dr. Hussain. The facility responded that Dr. Hussain was no longer at this location and that this facility did not have records for the Veteran. After undertaking further efforts to locate Dr. Hussain, the VA located the physician in Johnson City, New York. VA sent him a letter dated July 2010 requesting the Veteran's treatment records. Dr. Hussain responded in July 2010 that he no longer had records pertaining to the Veteran, whom he treated 9 years prior. It is noted that the operative report of Dr. Hussain dated September 1995 is associated with the claims folder along with a letter dated November 2003. In August 2010, the Memphis VAMC indicated that the facility had no hospital records for the period of 1992 to 1995 for the Veteran, other than the attached 1995 medical notes.
VA afforded the Veteran an opportunity to appear for a hearing. The Veteran testified before the undersigned in June 2008 and a copy of the transcript is associated with the claims folder. At that time, the VLJ asked questions of the Veteran and advised him concerning medical evidence in support of his claim. The actions of the VLJ at the hearing comply with 38 C.F.R. § 3.103. See Bryant v. Shinseki, 23 Vet. App. 488 (2010) (the hearing officer has a duty to fully explain the issues and to suggest the submission of evidence that may have been overlooked).
Additionally, VA afforded the Veteran an examination and obtained medical opinions on his behalf. The recent VA examination is adequate as it reflects a pertinent medical history, review of the documented medical history, clinical findings, a diagnosis, and an opinion supported by a medical rationale. Also, the VA opinions are adequate as they reflect a thorough review of the medical records and opinions supported by a medical rationale. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2009) (an examination, based upon the veteran's medical history and examinations, and describing the disability in sufficient detail so that the Board's evaluation will be a fully informed one, is adequate); see also Nieves- Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning). The adequacy of the examination and opinions has not been challenged by either the Veteran or his representative.
The Board finds that there is no indication that there is any additional relevant evidence to be obtained either by the VA or by the Veteran, and there is no other specific evidence to advise him to obtain. See Quartuccio v. Principi, 16 Vet. App. 183 (2002) (holding that both the statute, 38 U.S.C. § 5103(a), and the regulation, 38 C.F.R. § 3.159, clearly require the Secretary to notify a claimant which evidence, if any, will be obtained by the claimant and which evidence, if any, will be retrieved by the Secretary).
Accordingly, appellate review may proceed without prejudice to the claimant. See Bernard v. Brown, 4 Vet. App. 384 (1993).
II. Claims Under Section 1151
The Veteran seeks compensation under 38 U.S.C.A. § 1151. He asserts that delay in treatment for prostate cancer led to erectile dysfunction and incontinence issues. He reports that he had significantly elevated PSA (prostate specific antigen) levels, symptoms and other abnormalities, yet this was not timely acted upon and surgery was delayed until May 1995. He reports that, due to delayed treatment and more extensive surgery, he has additional disability. He argues that had he been treated more timely, his surgical residuals would have been less severe. It is noted that surgery was performed at a private facility but testing had been done by VA.
The Board notes that it has reviewed all of the evidence in the claims file, with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will provide a summary of the relevant evidence where appropriate. The Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim.
A. Pertinent Legal Criteria
The statutory criteria applicable to claims for benefits under the provisions of 38 U.S.C.A. § 1151 have undergone significant revision during the pendency of this appeal. With regard to claims filed before October 1, 1997, the governing statutory language is contained at 38 U.S.C.A. § 1151 (West 1991), which provides that, if a veteran suffers an injury or an aggravation of an injury as a result of VA hospitalization or medical or surgical treatment, not the result of the Veteran's own willful misconduct, and the injury or aggravation results in additional disability or death, then compensation, including disability, death, or dependency and indemnity compensation, shall be awarded in the same manner as if the additional disability or death were service-connected. See 38 C.F.R. § 3.358(a), 38 C.F.R. § 3.800(a) (2000).
In determining whether additional disability exists, the veteran's physical condition immediately prior to the disease or injury on which the claim is based will be compared with the physical condition subsequent thereto. With regard to medical or surgical treatment, the veteran's physical condition prior to the disease or injury is the condition that the medical or surgical treatment was intended to alleviate.
Compensation is not payable if the additional disability or death results from the continuation or natural progress of the disease or injury for which the veteran was hospitalized or treated. 38 C.F.R. § 3.358(a)(1).
Compensation is not payable for continuance or natural progress of a disease or injury for which hospitalization, medical or surgical treatment, or examination was furnished, unless VA's failure to exercise reasonable skill and care in the diagnosis or treatment of the disease or injury caused additional disability or death that probably would have been prevented by proper diagnosis or treatment. 38 C.F.R. § 3.358(a)(2).
On the matter of causation, section 3.358(c)(1) provides that "[i]t will be necessary to show that the additional disability is actually the result of such disease or injury, or an aggravation of an existing disease or injury, and not merely coincidental therewith." 38 C.F.R. § 3.358(c)(1). The mere fact that aggravation occurred will not suffice to make the additional disability compensable in the absence of proof that it resulted from disease or injury or an aggravation of an existing disease or injury suffered as a result of training, hospitalization, medical or surgical treatment, or examination. 38 C.F.R. § 3.358(c)(2). Compensation is not payable for the necessary consequences of medical or surgical treatment properly administered with the express or implied consent of the veteran or, in appropriate cases, the veteran's representative. "Necessary consequences" are those which are certain or intended to result from the medical or surgical treatment provided. Consequences otherwise certain or intended to result from treatment will not be considered uncertain or unintended solely because it had not been determined, at the time consent was given, whether that treatment would in fact be administered. 38 C.F.R. § 3.358(c)(3). Finally, if the evidence establishes that the proximate cause of additional disability or death was the veteran's willful misconduct or failure to follow instructions, the additional disability or death will not be compensable except in the case of a veteran who was incompetent. See 38 C.F.R. § 3.358(c)(4).
For claims filed prior to October 1, 1997, a veteran is not required to show fault or negligence in medical treatment. See Brown v. Gardner, 115 S.Ct. 552 (1994). But see 38 U.S.C.A. § 1151 (West 2002) (a showing of negligence or fault is necessary for recovery for claims filed on or after October 1, 1997).
In this case, the claim on appeal was filed before October 1997, and therefore it must be adjudicated pursuant to the earlier version of 38 U.S.C.A. § 1151. Thus, neither evidence of an unforeseen event nor evidence of VA negligence is required in order for this claim to be granted.
Hospital care, medical or surgical treatment, or examination cannot cause the continuance or natural progress of a disease or injury for which the care, treatment, or examination was furnished unless VA's failure to timely diagnose and properly treat the disease or injury proximately caused the continuance or natural progress. See 38 C.F.R. § 3.361(c)(2).
B. Factual Background
The Veteran seeks compensation for residuals of radical prostatectomy under 38 U.S.C.A. § 1151. He avers that VA failed to timely diagnose prostate cancer and this caused additional disability, impotence and urinary incontinence. See Hearing Transcript dated June 2008. The Veteran states that he was told by Dr. Hussain that had he been operated on in May 1995 rather than September 1995 he probably would not have become impotent. See Veteran's Statement received November 2008. He argued later that his VA urologist misdiagnosed him, by telling him he was okay when his PSA was 13, but his PSA was 23 when he was treated by Dr. Hussain, who performed his prostate cancer surgery. See Veteran's Statement dated July 2010.
The evidence of record includes VA medical records, private medical records, reports of VA examination, VA medical opinions, statements of the Veteran, sworn testimony of the Veteran, and various articles concerning prostate cancer submitted by or on behalf of the Veteran.
In brief, the record reflects that the Veteran began urological treatment with VA in 1986, including for service-connected prostatitis. Records reflect treatment for prostatitis and rising PSA. Records reflect that the Veteran underwent biopsy that was negative for cancer in 1994. Records show that the Veteran's PSA jumped from 13 to 23 in 1995. A repeat biopsy was performed. Adenocarcinoma of the prostate was diagnosed. The Veteran underwent a radical prostatectomy for prostate cancer in September 1995. The surgeon was Dr. Hussain, a private physician. The operative report dated September 1995 reflects findings for enlarged prostate, but no evidence of any capsular penetration by the tumor, no visible extension of the tumor into the seminal vesicles, and no palpable pelvic nodes. The Veteran subsequently developed impotence and urinary incontinence.
Poplar Bluff VAMC treatment records reflect that in October 1992 the Veteran's PSA was 3.9. In January 1994, his PSA was 7.4. In April 1994, his PSA was 11.8 and it was 9.2 in May 1994. In August 1994, signal lymph node enlargement was found. The Veteran's PSA was 12.4 in September 1994. Nodule left lobe of prostate was noted. Transrectal needle biopsy was performed to rule out prostate cancer. Pathology note dated September 1994 reflects benign glandular and stromal hyperplasia. The Veteran was seen in urology on August 17, 1995. He denied voiding problem. Objectively, prostate was 2+ indurated. It was noted that his last PSA was 14.6 in April 1995. It was further noted that the PSA had been rising since 1992 but that prior biopsy of right and left testicles were both negative for cancer. Current PSA was 23.8. Urinanalysis was within normal limits. The assessment was increased PSA. The plan was to repeat biopsy with ultrasound with follow-up in one month. Pathology report dated August 24, 1995, reflects prostatic adenocarcinoma. An August 31, 1995, treatment note reflects office biopsy showed adenocarcinoma of the prostate. Bone scan and other tests were planned. Follow-up was for the next week. On September 8, 1995, the Veteran and his wife were informed of the diagnosis of adenocarcinoma of the prostate. VA treatment notes dated after surgical treatment of prostate cancer reflect follow-up care.
A letter from Dr. Hussain dated November 2003 reflects that the Veteran underwent a radical retropubic prostatectomy in 1995, and did well post operatively without urinary incontinence but with complaint of erectile dysfunction, which he had had some difficulty prior to the surgery. The physician noted that the Veteran had reported he had been misdiagnosed by most physicians.
In March 2007, a VA examination was conducted. The Veteran reported that he believed his problems with erectile dysfunction and biochemical incontinence are caused the delay of his treatment from his initial doctor at Poplar Bluffs. By history, the Veteran had prostatitis since 1951 and received treatment through Poplar Bluffs VAMC in the 1990s. After an elevated PSA, he was referred to St. Louis VAMC for biopsy, which returned negative. The Veteran reported that the examiner was not satisfied with the results so he did a finger guided biopsy a few weeks to months later; the doctor told him he did not have cancer. The Veteran reported that the doctor thereafter left the VA healthcare system and so the Veteran thereafter obtained treatment from a private urologist, Dr. Hussain. Per the Veteran, Dr. Hussain saw him once and saw that his PSA had increased from 13 to 23, and diagnosed him with prostate cancer. The Veteran denied that Dr. Hussain performed a biopsy. Examination was performed. The assessment was prostate cancer and erectile dysfunction.
In an addendum to that examination report also dated March 2007, the physician clarified that the Veteran had erectile dysfunction and incontinence issues and that "it is unlikely that delay in treatment led to these issues for a radical retropubic prostatectomy." The examiner explained that these are common side effects of the surgery and whether the patient had any delay in treatment or not "probably" would not change the end result in the side effects of the surgery. Also, on the matter of whether history of chronic prostatitis may have led to prostate cancer, the examiner opined that the "research is inconclusive." He noted that several articles have shown an association while several other articles have shown no association. He opined that "I do no believe that chronic prostatitis is a likely cause of his having prostate cancer."
In June 2008, the Veteran submitted copies of web-based research in regard to the relationship between prostatitis and prostate cancer, which included "Does prostatitis lead to prostate cancer?" and "Diagnosing Early Symptoms of Prostate Cancer."
In March 2010, a VA genitourinary examination was conducted. The claims file was reviewed. The pertinent medical history and physical examination findings are recorded in the report of examination associated with the claims folder. The impression was adenocarcinoma of the prostate, treated with radical prostatectomy in 1995, with impotence and urinary incontinence since that surgery. The examiner commented as follows: "It is my opinion supported by the medical literature that chronic prostatitis is not recognized as an etiological cause of prostate cancer. Therefore, I do not think it is related to his service-connected prostatitis." With regard to the Veteran's allegation that a delay in diagnosis affected his outcome, the examiner stated that "I cannot without resorting to speculation say whether there was any reasonable delay in his diagnosis but my feeling is that this would not have materially affected his outcome." The examiner explained that "These complications of impotence and urinary incontinence are known complications of prostate surgery regardless."
In an addendum to this opinion dated March 2011, the examiner elaborated on the prior medical opinion, noting that he had reviewed the claims folder and conducted medical research. He included medical literature with his opinion regarding risk factors for prostate cancer. The examiner indicated that much research was underway on the etiology of prostate cancer but that there was no established correlation between prostatitis and prostate cancer. He indicated that numerous etiologies for prostate cancer included obesity, diet, Agent Orange, various medications, vasectomy, ultraviolet light exposure, and familial and ethnic risk factors. The examiner stated that he did not believe that the Veteran had a delay in diagnosis, noting that he was biopsied and found to have prostate cancer after his PSAs results became elevated. The examiner further noted that the Veteran's original diagnosis did not show cancer but a repeat diagnosis was obtained on a second prostate biopsy as his PSA continued to rise. The examiner concluded that urinary incontinence and impotence resulting from prostate cancer surgical removal was unrelated to a delay of diagnosis or any failure of V to provide reasonable treatment. He noted that these symptoms were known complications of prostate surgery and treatment or prostate cancer, which the Veteran was fully aware as indicated by his signed consent forms.
Analysis
Having carefully reviewed the evidence of record, the Board finds that the preponderance of the evidence is against the claim. The Board notes that it is uncontroverted that the Veteran underwent radical prostatectomy in 1995 for adenocarcinoma of the prostate and that he now has residual impotence and urinary incontinence. However, compensation under 38 U.S.C.A. § 1151 and 38 C.F.R. § 3.358 requires that there is additional disability resulting from a disease or injury (or aggravation of existing disease or injury) suffered as a result of hospitalization, medical or surgical treatment, or examination. Thus, the seminal question in this case is whether adenocarcinoma of the prostate and or post operative residuals of prostate cancer are the result of VA hospital care, medical or surgical treatment, or examination. Also, at issue, is whether the Veteran has additional disability that probably would have been prevented by proper diagnosis or treatment.
Here, competent evidence has not been presented showing that adenocarcinoma of the prostate or residuals of radical prostatectomy are the result of VA hospitalization, medical or surgical treatment, or examination. The record shows that the appellant obtained a diagnosis of adenocarcinoma in August 1995 from VA following a positive biopsy, which was also performed in August 1995. However, his surgery-a radical prostatectomy-was performed by a private physician, not VA. Although the record shows that the appellant had erectile dysfunction and urinary incontinence following his surgery by a private physician, the competent evidence of record show no indication that any residuals of his surgery are related causally to VA hospitalization, medical or surgical treatment, or examination.
The lay evidence of record is entirely sufficient to show that the Veteran currently has erectile dysfunction and urinary incontinence. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007) (lay evidence can be competent and sufficient to establish a diagnosis of a condition when a layperson is competent to identify the medical condition). However, to the extent that the Veteran and his wife report a causal relationship between his VA medical care or treatment (or diagnosis) and adenocarcinoma of the prostate or residuals of radical prostatectomy, the lay evidence is not competent. The Board finds that the Veteran and his wife are not competent to report on such because it involves complex medical matters requiring medical expertise and knowledge, which is simply outside the realm of a layman's knowledge. See Jandreau, supra. (explaining in footnote 4 that a veteran is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions).
The Board acknowledges the Veterans assertion that a delay of diagnosis of prostate adenocarcinoma by VA caused additional disability. The Board further acknowledges the Veteran's assertion that he had prostate cancer earlier than August 1995 but that he was misdiagnosed as not having prostate cancer. However, the Veteran is not competent to opine on whether there was a delay of diagnosis or a misdiagnosis. Jandreau, supra. As indicated above, these are complex medical matters.
The record shows that VA performed a biopsy in September 1994 and the results were benign. After dramatically rising PSAs between 1994 and 1995, a VA biopsy was preformed in August 1995. The pathology report dated August 1995 showed adenocarcinoma of the prostate. VA then notified the Veteran and his wife of that pathology result in early September 1995. The Board finds that even a cursory review of the timeline does not support a finding that there was any delay in diagnosis or misdiagnosis. This, coupled with a VA medical opinion dated March 2011, which reflects that the examiner did not believe that there was a delay of diagnosis weighs against the validity of his assertions as well as his claim The Board finds that the Veteran's assertions of delayed diagnosis and misdiagnosis are not supported by the record. Furthermore, the Board observes that Dr. Hussain noted that the Veteran reported that he was misdiagnosed by most physicians and Dr. Hussain did not endorse the Veteran's view at this time.
Additionally, even assuming arguendo that there was a delay of diagnosis, a VA medical opinion dated March 2007 reflects that it was unlikely that delay in treatment led to radical prostatectomy, and that any delay probably would not have changed the end result, noting that erectile dysfunction and incontinence are common side effects of prostate surgery. Similarly, a VA medical opinion dated March 2010 reflects that any reasonable delay in diagnosis would not have materially affected the Veteran's outcome.
The Board assigns significant probative value to the medical evidence of record and, in particular, the VA medical opinions dated March 2007, March 2010, and March 2011. An evaluation of the probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the examiner's knowledge and skill in analyzing the data, and the medical conclusion reached. The credibility and weight to be attached to such opinions are within the province of the Board as adjudicators. Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993); see also Sklar v. Brown, 5 Vet. App. 140 (1993) (The probative value of a medical opinion is generally based on the scope of the examination or review, as well as the relative merits of the expert's qualifications and analytical findings, and the probative weight of a medical opinion may be reduced if the examiner fails to explain the basis for an opinion). Here, the VA medical opinions are supported by a rationale based on review of the claims folder, examination of the Veteran, consideration of relevant literature and research, and the examiners' medical training and knowledge. Therefore, the medical evidence has significant probative value. This evidence weighs against the claim.
It is noted that there is not a favorable medical opinion of record against which to evaluate the negative medical opinions.
Weighing the evidence of record, the weight of the evidence is against compensation under 38 C.F.R. § 1151 as the evidence shows that the diagnosis for adenocarcinoma of the prostate was not delayed or that the Veteran was not misdiagnosed as cancer-free by VA prior to the positive cancer finding in August 1995. In other words, additional disability resulting from a disease or injury (or aggravation of existing disease or injury) suffered as a result of hospitalization, medical or surgical treatment, or examination is not shown.
Accordingly, the claim is denied. Absent a relative balance of the evidence, the evidence is not in equipoise and the benefit-of-the-doubt doctrine does not apply. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet.App. 49 (1990).
Lastly, in VA Form 646 and at the personal hearing in 2008, the Veteran's representative asserted that the March 2007 VA physician (Dr. Dang) should have taken account of 38 C.F.R. § 3.102 and afforded reasonable doubt to the Veteran. However, the Board notes that this regulatory provision is a legal concept and physicians are bound to apply sound medical principles in resolving medical questions, whereas the adjudicators-such as, the Board-are obligated to weigh all procurable and assembled data to ascertain whether the evidence is in equipoise and thus entitled to the benefit-of-the-doubt. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. Therefore, the representative's argument is not persuasive in a either a procedural or merits context.
ORDER
Compensation for adenocarcinoma of the prostate to include post operative residuals is denied.
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ROBERT E. O'BRIEN
Acting Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs